Attorneys who filed amicus briefs to the US Supreme Court for two
public interest organizations supporting Montana in its state version of Citizens United have issued increasingly
sharp calls for urgent action by Montana Attorney General Steve Bullock to
assert sovereign immunity as a Supreme Court deadline approaches on Wednesday
June 13 in advance of the Supreme Court conference that could decide the matter the
next day. Surprisingly, the Montana Attorney General has not so far
asserted sovereign immunity--Montana's constitutional right not to be sued by a
private party in federal court without its consent.

An article, " Citizens United Montana and the Eleventh Amendment,"
published in Corporate Crime Reporter
on June 9, 2012, had the two attorneys concerned that "unless the Montana
Attorney General asserts Montana's sovereign immunity in its own filings, the
Supreme Court may ignore the jurisdictional issue." A news release
circulated by The Eleventh Amendment Movement on June 11 quotes Attorney Carl Mayer saying,
"in my opinion, this is a basic and potentially serious litigation error, not
to raise jurisdictional issues when available. At the very least, Montana's
chances would be greatly improved and there is absolutely no legal downside to
raising this defense. But time is running out." Mayer recently won an important
constitutional victory in a federal court in New York that overturned a section
of the National Defense Authorization Act (NDAA) that permitted indefinite
detentions of citizens in the U.S.

State sovereign immunity is a
right fundamental to the constitutional plan of the founding convention that
was reaffirmed by the 11th Amendment adopted in 1795. The public
interest attorneys believe that the Montana election financing case is just the
sort of situation for which the constitutional provision was designed and is
most appropriate. Conveniently, recent cases
have overturned any exception to 11th amendment immunity because a case
originates in state court.

While some have been calling for
a constitutional amendment to overturn Citizens
United, the Constitution already has amendments, the 10th and 11th
Amendments, that together can be used to overturn Citizens United on a state-by-state basis.

The suit against Montana by
corporate entities ( American Tradition
Partnership v. Bullock) seeks to enforce the 2010 US Supreme
Court decision in Citizens United to
overturn a December 2011 decision by the Montana Supreme Court to uphold
Montana's century-old prohibition on corporate money in elections.

If the US Supreme Court
dismisses the suit against Montana for lack of jurisdiction based on sovereign
immunity, then the decision by the Montana Supreme Court will remain good law
in Montana. The Montana law would continue to protect elections in Montana from
the corrupting influence of unlimited corporate money in elections. Other
states could enforce or enact similar legislation notwithstanding the Citizens United decision overturning
federal election finance law. Thus, the Montana case has a vital role, not only
in protecting democracy in Montana, but also as precedent for the other 49
states. The Montana case presents a strategy for overturning the disastrous
results of Citizens United state by
state.

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The corporations attacking
Montana spent
10 pages in their petition for certiorari requesting summary reversal of the Montana Supreme Court decision. Summary
reversal means no briefs, no hearing, no arguments--and maybe even a smothering
of public controversy and opposition. Possibly just a short statement from the
US Supreme Court that the decision of the Montana Supreme Court is reversed
will get little mass media attention. And that's the end of it for Montana and
a bad start for the state-by-state strategy.

The Supreme Court
will almost certainly agree to review the Montana case. At the same time, there
is little reason to think the five justices in the majority in Citizens United
have changed their minds.

The main question
on Thursday, then, will be how the court will reverse the Montana decision. It
could call for briefs, set the case down for argument in the fall and issue a
decision months later. Or it could use a favorite tool of the court led by
Chief Justice John G. Roberts, Jr. -- the summary reversal.

One can imagine few results more
disappointing to the cause of removing the corrupting influence of money from
elections and to the dignity of Montana than to lose this case based on summary
reversal. The Supreme Court will consider whether to review the Montana Supreme
Court decision and, if so, could immediately decide to summarily reverse the
Montana Supreme Court decision as early as Thursday, June 14.

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The Supreme Court could, if it
wished, issue a statement justifying summary reversal if no new issue is
brought forward for consideration beyond the issues the Court already
considered in Citizens United in
2010.

The extreme circumstances of
this case make an assertion of sovereign immunity especially powerful, and not
just because it would present the kind of new issue that would preclude summary
reversal. Just as important, the five conservative US Supreme Court justices
who decided Citizens United are also
the strongest supporters of 11th Amendment sovereign immunity. The extreme
facts of the Montana case align precisely with reasoning these five justices
have used in other cases. The extreme facts also make highly unlikely the
concern about abuse of sovereign immunity raised in an email by the Montana
Assistant Attorney General and quoted in the Corporate Crime Reporter article: "the potential implications
in other contexts if your theories are adopted."

Winning the case by invoking
sovereign immunity is the only way that difficulties for other contexts could
be established. Therefore, the Montana Assistant Attorney General's statement
implies agreement that asserting sovereign immunity is likely a winning
strategy for Montana. The troubling conclusion is that the Montana Attorney
General knows he has a potentially winning defense based on a constitutional
provision in this vitally important case, but he is unwilling to assert that
defense for speculative reasons about other contexts having nothing to do with
the case at hand.